Scalia is quite right to disdain rulings of the European Court of Human Rights as relevant to American constitutional questions. Article VI identifies three sources of "supreme law": the Constitution, acts of Congress, and treaties. No treaty to which the U.S. is a signatory obliges our judges, state or federal, to pay the least bit of attention to the rulings of the ECHR (thank goodness). Nor does "customary international law" have any bearing on the laws by which Americans govern themselves.
Scalia's "federalism"--I have in mind those cases where the five "conservative" justices band together to defend "sovereign immunity" or tendentious readings of the Tenth Amendment or limits on the commerce power--is lousy originalism precisely because it forgets that the Constitution is not a treaty among the states, and because it rests on an ahistorical view of the proper reach of judicial review.
Matt
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Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail [EMAIL PROTECTED]
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At 01:23 PM 8/1/2003 -0400, you wrote:
Prof. Franck writes in relevant part:
Scalia is a good originalist in Lawrence, and a lousy one when it comes to "federalism" and other Loch Ness monsters of the Constitution.
Comment: It is not so clear to me that Scalia is a "good originalist" in Lawrence. He fails to recognize that the Eur.Ct.H.R. cases cited in the Court's opinion reflect customary international legal obligations with which the 14th Amendment's due process clause must be construed because of the Constitution's status as a treaty --something which both Federalist and Anti-Federalist recognized. See Federalist No. 5; Anti-Federalist No. 75. Customary international law is evolving -- also something that the Founding Fathers recognized. See Ware v. Hylton (1796). Good originalism recognize that the Constitution's provisions (viz., due process clause) must be construed in conformity with this evolving customary international law. Scalia misconstrues the constitutiona! l relevance of the Eur.Ct.H.R. cases by indicating that they are merely foreign law -- not evidence of the U.S.' customary international legal obligations. This is particularly contrary to originalism because the Founders specifically saw European customary international law as binding on the U.S.
By the way, how is Scalia's federalism lousy?
Francisco Forrest Martin
